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Sexual misconduct policy

I. Preamble

Sexual misconduct (defined below) is a violation of University policy and, depending upon the conduct involved, may violate state law. Such conduct is subject to sanction by the University and possibly criminal prosecution. The University does not tolerate any form of sexual misconduct, and will investigate promptly any report of sexual misconduct made to the Title IX Coordinator. The term “Title IX Coordinator” refers to the University employee who implements the University’s Sexual Misconduct Policy.  DePauw’s Title IX Coordinator is Renee Madison, Senior Advisor to the President for Diversity and Compliance.  As described in Section II below, DePauw defines sexual misconduct to include a broad spectrum of violent behaviors including but not limited to: dating and/or domestic violence; stalking; voyeurism; sexual battery; rape; sexual harassment or any other nonconsensual sexually-related conduct. The University also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation or hostility based on sex or sex-stereotyping, even if those acts do not involve physical conduct.

The purposes of this Policy are: 1) To provide a fair, educationally valid process to investigate and address alleged sexual misconduct, resulting in prompt decisions reflecting the values of the DePauw community; 2) To establish and protect the rights of members of the DePauw community; 3) To promote the development of individual and group integrity; and 4) To enforce the non-academic rules and regulations of the University.

Victims wanting to bring criminal charges must proceed via the criminal justice system. DePauw Public Safety will assist with the involvement of local police. Students interested in filing criminal charges may also seek assistance directly from other law enforcement agencies. The filing of criminal charges does not preclude pursuing Sexual Misconduct charges.  

DePauw offers programming during the academic year to prevent and address sexual misconduct.  DePauw emphasizes bystander intervention and educates its students about prevention of sexual misconduct and its Sexual Misconduct Policy.  All new students are required to attend sexual misconduct prevention programs during New Student Orientation.  DePauw Employees receive training on their duty to report incidents of sexual misconduct to the Title IX Coordinator. 

II. Reporting, Confidentiality, Preservation of Evidence and Resources for Victims

DePauw encourages survivors of sexual misconduct to talk with someone promptly about what happened so that they can get any support they need and so DePauw can respond appropriately. 

Different University employees have different abilities to maintain a victim’s request for confidentiality. The victim may report the incident confidentially to someone who is not required to report to the Title IX Coordinator, or may choose to report the incident to someone who is required to report to the Title IX Coordinator.  An employee who is required to report to the Title IX Coordinator may request that the Title IX Coordinator keep the report confidential.  The Title IX Coordinator then determines whether the confidentiality request can be honored. 

Confidential Reporting:

A victim may report an incident to an employee who is not required to report to the Title IX Coordinator and who can promise confidentiality.  Those employees are licensed counselors, medical professionals, and ordained clergy acting in a pastoral care capacity. 

Non-Confidential Reporting:

A victim may report an incident to an employee who is required to report to the Title IX Coordinator. Those employees include all faculty, all staff (excluding those designated as staff to whom confidential reports can be made), all administrators, including Student Life and Public Safety personnel, and Resident Assistants (RAs). 

Reporting to a SASA :

If a victim is not sure where to report an incident, the victim should call a Sexual Assault Survivors’ Advocate (SASA) at 765-658-4650 for assistance.  Generally, a victim can seek assistance and support from a SASA without triggering an investigation that could reveal the victim’s identity or that the victim has disclosed the incident.  However, a SASA will report the nature, date, time, and general location of an incident to the Title IX Coordinator without disclosing personally identifiable information.  Questions about confidentiality of discussions with a SASA can be discussed with the SASA  .

The University will investigate all reports of sexual misconduct received by the Title IX Coordinator.  If the University decides that a formal charge of sexual misconduct should be processed, the Assistant Dean of Students or designee will notify the victim and the accused student by letter of the nature of the charges and the scheduling of a hearing.  In cases where the Assistant Dean determines there is sufficient risk to public or individual safety, the University will take interim steps to address those issues, and reserves the right to proceed to a hearing with or without the participation of the victim.   In the event that the Assistant Dean determines that no formal charge of sexual misconduct should be processed, the Dean will notify the victim and the accused student of that determination.

Students making a report (whether a complainant or a witness) will not be charged under the University's Community Standards process for a violation of the University's alcohol or drug policy, so this need not be a barrier to reporting. Retaliation or intimidation against anyone involved in the process or anyone who pursues criminal action is a serious violation of the Student Code of Conduct and will be treated as such.

Resources:

SASA counselors from the Wellness Center and other Student Life staff members are available to assist in the reporting process, help access appropriate resources, and offer ongoing assistance. DePauw Public Safety Officers and SASA are available 24/7 to discuss safety plans and security issues with students. There are staff members in the Wellness Center who have been trained as Sexual Assault Nurse Examiners and are available to conduct evidence collection exams at any time; students may access this resource by contacting Public Safety 24/7. Students may also receive a sexual assault examination at the Putnam County Hospital. Students are encouraged to seek prompt medical attention in cases of sexual misconduct, if necessary, and to preserve all evidence of the incident.  Such evidence will assist in proving that the misconduct occurred and obtaining assistance from proper authorities.

III. Interim Measures

The University will take any steps necessary to protect the rights of victims and accused students and the safety of the public and University community after receiving a report of sexual misconduct.  Those steps include providing access to counseling, issuing no-contact orders directed to each of the parties, issuing interim suspensions, assistance in obtaining restraining orders, changing housing, rearranging class schedules if available, and assistance with local law enforcement.  DePauw is obligated to comply with reasonable requests for living and/or academic situation changes following an alleged offense.  These options will be discussed with a victim upon receipt of a report of alleged sexual misconduct and the options will be outlined for the victim in writing.

IV. Important Phone Numbers

Public Safety                                                        765-658-5555

Counseling Service                                              765-658-4268

Sexual Assault Survivors’ Advocates                 765-658-4650

Putnam County Hospital                                      765-653-5121

Sexual Assault Nurse Examiners                         765-658-4555

Greencastle Police                                               765-653-2925

Putnam County Sheriff                                      765-653-3211

*After hours, sexual assault nurse examiners can be reached through Public Safety

V. Statement on the Rights of Victims

DePauw strives to ensure that all victims are afforded the following rights:

  • To be treated respectfully by University staff and officials

  • To have complaints responded to promptly and sensitively, investigated appropriately and addressed competently.

  • To have a support person of one’s own choosing present during any hearing

  • To not be discouraged from reporting by University staff or officials

  • To have a hearing of such charges before the Sexual Misconduct Hearing Board

  • To have adequate notice of and time to prepare for said hearing

  • To be promptly notified of the outcome of any hearing or charges to the extent permitted by the law, regardless of whether or not one participates in the hearing process

  • To report to campus, local or state police, and to be supported by University officials in so doing

  • To be referred to campus and local mental health and counseling services

  • To submit a written statement indicating the impact the alleged violation has had on her/him and hopes he/she may have for sanctions assigned to the accused student.  This statement will be considered during the deliberations if the board makes a finding of responsibility.

  • To obtain a no-contact order against another student, and to have assistance in obtaining a restraining order from the State if so desired

  • To receive assistance from University officials and staff with any necessary adjustments to living and/or academic situations if such changes are reasonable and requested

  • To have irrelevant prior sexual history be made inadmissible at any University hearing

  • To be free from any form of retaliation

VI. Statement on the Rights of Accused Students

DePauw strives to ensure that all students who are accused of sexual misconduct are afforded the following rights:

  • To be treated respectfully by University staff and officials

  • To have complaints responded to promptly and sensitively, investigated appropriately and addressed competently.

  • To have a support person of one’s own choosing present during any hearing

  • To be promptly notified of the nature and extent of any charges, and of the outcome and any sanction resulting from a hearing

  • To have a hearing of such charges before the Sexual Misconduct Hearing Board

  • To have adequate notice of and time to prepare for said hearing

  • To invoke the right to refuse to answer some or all questions (with the qualification that the University reserves the right to go forward with disciplinary proceedings based on available information, if the accused invokes this right)

  • To be referred to campus and local mental health and counseling services

  • To obtain a no-contact order against another student, and to have assistance in obtaining a restraining order from the State if so desired

  • To receive assistance from University officials and staff with any necessary adjustments to living and/or academic situations if such changes are reasonable and requested

  • To have irrelevant prior sexual history be made inadmissible at any University hearing

  • To be free from any form of retaliation.

VII. Sexual Misconduct Defined

The University defines sexual misconduct broadly, to include any form of the following conduct:

1. Non-Consensual Sexual Contact: Physical contact of a sexual nature by one person against the will of or without the consent of another.

2. Relationship Violence: One or more than one of the following behaviors directed at a current or former partner: (1) physical behaviors such as slapping, pulling hair, punching; (2) verbal abuse; and (3) threats of physical, sexual or other types abuse.

a.    Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.

b.     Domestic Violence: A felony or misdemeanor crime of violence committed –

(i)       By a current or former spouse or intimate partner of the victim;

(ii)     By a person with whom the victim shares a child in common;

(iii)    By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;

(iv)   By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or

(v)     By another person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.

3. Sexual Battery: Intentional touching another person for the purpose of arousing or satisfying one’s own sexual desires or the sexual desires of another person without the consent of or against the will of the person being touched.

4. Rape: Knowing or intentional sexual intercourse or other sexual conduct (as defined below) with another person against the will of or without the consent of that person. Acquaintance rape, commonly referred to as “date rape,” may occur in the context of a single date, a hook-up, an on-going relationship, or any other interaction between two people when one person forces another to have sex, or takes advantage of him/her while she/he is incapacitated. Other sexual conduct means:

(a) acts involving a sex organ of one person and the mouth or anus of another person; or

(b) the penetration of the sex organ or anus of a person by an object.

5. Sexual Exploitation: Nonconsensual use of sexual contact by one person with another for his/her own advantage or benefit, or to benefit or advantage anyone other than the person being exploited, and the behavior does not otherwise constitute rape, battery or deviant sexual conduct, or other policy violations. Examples of sexual exploitation include prostituting another student, nonconsensual video or audio taping of sexual activity (such as one person allowing others to secretly watch consensual sex), engaging in voyeurism and knowingly transmitting an STD or HIV.

6. Stalking: A pattern of repeated and unwanted attention, harassment, contact or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear for the person’s safety or the safety of others, or suffer substantial emotional distress. Stalking can include:

a. Repeated, unwanted, intrusive and frightening communications from the perpetrator by phone, mail and/or email.

b. Repeatedly leaving or sending the victim unwanted items, presents or flowers.

c. Following or lying in wait for the victim at places such as home, school, work or recreation place.

d. Making direct or indirect threats to harm the victim, the victim's family, friends or pets.

e. Damaging or threatening to damage the victim's property.

f. Harassing victim through the internet.

g. Posting information or spreading rumors about the victim on the internet, in a public place or by word of mouth.

h.Obtaining personal information about the victim by accessing public records, using internet search services, hiring private investigators, going through the victim's garbage, following the victim, contacting victim's friends, family work or neighbors, etc.

7. Sexual harassment: Unsolicited and unwelcome comments or conduct of a sexual nature as defined under the University’s Harassment Policy.

VIII. Statement on Consent

The majority of the sexual misconduct complaints received by the University revolve around the question of whether the complainant consented to the conduct at issue. In an effort to provide students guidance for their conduct, the following guidelines are used to evaluate this issue.

Consent is clear, knowing and voluntary.  Consent is active, not passive.  Silence, in and of itself, cannot be interpreted as consent.  Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.  Consent to any one form of sexual activity does not automatically imply consent to any other forms of sexual activity.  Previous relationships or prior consent do not imply consent to future sexual acts.

When it is unclear whether someone consents to activity, it is the responsibility of the person who initiates the activity to ensure that his/her partner clearly communicates effective consent. To continue to engage in sexual activity without effective consent from his/her partner is a violation of this policy.

Effective consent must be mutually understandable. That is, a reasonable person would have to consider the words or actions of the parties to indicate that there was an agreement to engage in the given activity with each other at the same time.

Consent cannot be obtained through force. Force is the use of physical violence and/or imposing on someone physically to gain sexual access.  Force also includes threats, intimidation (implied threats) and coercion that overcome resistance or produce consent.

Coercion is unreasonable pressure for sexual activity.  Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.  When someone makes it clear that they do not want to have sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.  Note: There is no requirement that a party actively resist the sexual advance or request, but resistance is a clear demonstration of non-consent.  Sexual activity that is forced is by definition non-consensual, but lack of physical force or coercion does not indicate consent.

Consent cannot be given by minors to adults, by mentally disabled persons, or by otherwise physically or mentally incapacitated persons. People who are unconscious, asleep, incapacitated as a result of alcohol or drugs (whether consumed voluntarily or involuntarily) or who are physically or mentally incapacitated cannot give effective consent.

Incapacitation is an important and specific concept. A person who is incapacitated is incapable of recognizing what is going on around him/her. An incapacitated person is not able to recognize the sexual nature or extent of the situation she/he is in. To engage in sexual activity with a person one knows or should know is incapacitated is a violation of this policy.

 

IX. Powers of the Assistant Dean of Students

The Assistant Dean of Students or the Assistant Dean’s designee shall determine whether a charge of sexual misconduct will be forwarded to the Board for a hearing. The Assistant Dean of Students may take any action necessary to serve the public safety interest of the University community or to further the prompt resolution of any charges of sexual misconduct. If the determination is made to forward a charge to the Board for a hearing, the Assistant Dean will issue a charge in writing to the accused student.

X. Sexual Misconduct Hearing Board

The Sexual Misconduct Hearing Board (the “Board”) resolves allegations of sexual misconduct and sexual harassment and imposes sanctions where appropriate. While the parties involved will have certain procedural rights, the procedure described is not intended to constitute a legal proceeding.  The Board shall hold hearings as described below to determine facts and responsibility for the conduct charged. The Board acts only upon presentation of a written charge of sexual misconduct as described in Section VIII.B below.

A. Composition of the Board

  1. The Board shall consist of seven administrative staff members appointed by the Assistant Dean of Students to terms of at least two (2) years. The seven-member makeup of the board shall include at least two women and two men at all times.

  2. Each charge of sexual misconduct will be heard by a panel of three Board members.  The panel chair shall be appointed by the Assistant Dean of Students and shall be a person who has served on the Board for at least one year. In addition to the chair, two members of the Board will be appointed by the Assistant Dean of Students to a panel to hear a charge. At least one male and one female should serve on the panel.

  3. No member of the Board may consider a case in which the member would have a conflict of interest.  The complainant and the accused student will be notified of the identities of proposed panel members in advance, and will be given a reasonable opportunity to request the appointment of alternate panel members if a conflict of interest is identified. The Assistant Dean of Students will make decisions on whether alternate panel members will be appointed or not following such a request, and generally will handle potential conflict of interest issues. A conflict does not necessarily occur because a panel member has previously evaluated the conduct of one of the persons involved. In the event that circumstances prevent selection of a hearing board composed of persons who have not evaluated the conduct of an individual previously, a hearing board may be composed of one or more persons who have evaluated previously the conduct of the involved students.

  4. During the first year of his/her term on the Board, each member shall participate in formal training. The Board also receives ongoing training.

B. Procedure

  1. Any student enrolled at DePauw may file a report of sexual misconduct against another DePauw student with the Office of Student Life, the Public Safety Office or the Title IX Coordinator. Other community members, guests and visitors may also file reports about current students. The Assistant Dean shall conduct a preliminary review and investigation of all information gathered or reported. The results of the preliminary review and investigation shall be used by the Assistant Dean to determine whether the report warrants the University charging the accused student with a violation of the sexual misconduct policy. The Assistant Dean may involve other individuals as he/she determines is appropriate in conducting the preliminary review and investigation. If the Assistant Dean determines that the report warrants a formal charge and a hearing by the Board, he/she will explain the hearing procedure to the complainant and the complainant will then decide whether to participate in a hearing. The decision by the Assistant Dean as to whether the report should be processed as a charge is final and is not subject to further review.

  2. The charge shall be heard by the panel selected by the Assistant Dean of Students. Upon receipt of the charge, the Assistant Dean shall notify the accused student in writing of the filing of the charge and of the hearing date when possible. The hearing date shall be set not more than 30 days from the date of the notice to the accused student. The Board prescribes the procedures to be followed at the hearing. Such procedures will be made available to the complainant and accused student prior to the hearing.

  3. A hearing shall be conducted by the panel selected at the time and place indicated in the notice. The Assistant Dean of Students or his/her designee will attend the hearings. The hearing shall be audio recorded and the recording shall be maintained by the Office of Student Life. The recording will be securely maintained for a period of six (6) years following the conclusion of any hearing unless some longer retention period is deemed appropriate under particular circumstances.

  4. The complaining student and the accused student are each entitled to an advisor of their choosing.  The advisor may be an attorney.  Advisors are permitted to accompany a student at any meeting regarding a sexual misconduct investigation or regarding a sexual misconduct hearing, and are permitted to accompany a student at any sexual misconduct hearing.  The University can recommend an advisor from its faculty or administrative staff if requested by a student.  Because DePauw is required to proceed promptly with any investigation and any hearing, advisors must make every effort to accompany a student at any meeting or hearing as scheduled by the University.  The University will try to accommodate requests for short delays in scheduled meetings or hearings.  An advisor accompanying a student at any meeting or hearing may provide support, guidance or advice to the student during the meeting or hearing, but may not otherwise participate in the meeting or hearing unless requested to do so by the University.

  5. Any report of alleged sexual misconduct shall be reported in accordance with The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.  These reports will be made without disclosing the names of either the complainant or the accused student. If the Assistant Dean determines that matters of public safety are involved, the Assistant Dean may disclose such information as is necessary to address that issue.

  6. The complainant and the accused student shall have the opportunity to attend the hearing and to hear and respond to evidence. The complainant and the accused student may not directly question one another. In the event the complainant or the accused student is unable or unwilling to attend, the panel may proceed with the hearing if it determines that proceeding with the hearing is in the best interest of the University community; provided, however, any determination of facts and responsibility for the conduct charged shall be based upon evidence presented at the hearing through testimony, written statements or summaries of interviews.

  7. Hearings shall not be publicized or open to the public. Panel members and all others present during the hearing (respective advisors, complainant, accused student, witnesses) shall hold matters relating to the hearing in strict confidence. Witnesses are not permitted to attend hearings other than to testify.

  8. Witnesses shall be limited to members of the DePauw faculty, staff or student body, unless the chair of the panel rules that others may appear. The complainant and the accused student shall submit the names of witnesses to the chair of the panel in writing at least 48 hours prior to the hearing. The complainant and the accused student shall have access to the names of all witnesses. The panel may call additional witnesses or seek further evidence.

  9. One of the following events can delay the start of a hearing:

    1. Either party petitions the chair of the panel in writing for a continuance of the hearing not less than 48 hours prior to the scheduled hearing, and the chair of the panel determines that such petition makes a strong showing of substantial need of such a continuance in order to maintain the fairness and integrity of the process; or

    2. The chair of the panel determines that a situation exists that requires a continuance of the scheduled hearing date in order to preserve the integrity and basic fairness of the process. In the event a continuance is granted by the chair of the panel, every effort will be made to hear the matter as expeditiously as possible.

  1. The complainant is allowed to submit an impact statement.  If the Board determines a finding of responsibility, they will review the statement and take it into consideration of an appropriate sanction.

  2. A majority of the panel selected to hear a charge shall determine the facts and whether the accused student is responsible for the conduct charged. The threshold for determining responsibility is a preponderance of evidence (more likely than not that the conduct charged happened). Having found the facts and made a determination on the issue of responsibility, the panel shall at the same time also impose the appropriate sanction, if any. The decision of the panel shall be in writing, and the complainant and the accused student shall be notified of the decision by the chair of the panel. The findings and any sanction shall be made a part of the accused student's permanent file.

 

XI. Sanctions

If the panel finds the accused student to be responsible for the charged sexual misconduct, it shall impose sanctions, which may include expulsion. Sanctions of suspension or expulsion carry with them a forfeiture of tuition, fees and residence hall room and board.  Protective measures, including no-contact orders and changes to residential and/or academic situations, may also be implemented upon a finding of responsibility.

XII. Appeals

A. Procedure

An appeal of a determination of any fact found, conclusion regarding responsibility made, or sanction imposed by the panel may be filed with the Vice President for Student Life in writing by the complainant or the accused student within 72 hours of the date of the letter of notification from the chair of the panel, unless that time is extended in writing by the Vice President. Appeals may be based only on the following reasons:

  1. New evidence not reasonably available at the time of the original hearing, the absence of which is likely to have affected the outcome

  2. Procedural error likely to have affected the outcome

  3. Appropriateness of sanction

All materials supporting any appeal must be submitted at the time the appeal is filed. The Vice President will advise the non-appealing party in writing of the receipt of an appeal and will provide a copy of the appeal to the non-appealing party.  The non-appealing party will have five (5) days from the date of his/her receipt of the appeal to respond in writing to the appeal. 

B. Disposition of appeals by the Vice President

The Vice President may:

  1. Affirm the action taken by the panel.

  2. Reverse the panel’s determination of facts and/or responsibility and refer the case back to the Board for another hearing.

  3. Reverse the panel’s determination of facts and/or responsibility and vacate any sanction.

  4. Impose different sanctions.

The Vice-President will advise both parties in writing of the decision on appeal. Decisions by the Vice President are final.

XIII.  Communication of Hearing Outcomes

Both the complainant and the accused student will be notified in writing of the outcome of a Sexual Misconduct hearing and of any appeal decisions following a hearing.  Statistics citing the number of reports of sexual misconduct and disposition of such reports are included in the Annual Security and Fire Safety Report which can be found on the Public Safety Website.  DePauw takes steps to maintain the confidentiality of the information developed during any investigation or hearing process.